W v Police HC Rotorua Cri-2010-463-15

[2010] NZHC 200

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-463-000015

CRI-2010-463-000016

BETWEEN  W   

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         5 March 2010

Appearances: H Edward for Appellant

S Wootton for Crown

Judgment:      5 March 2010

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Rotorua

H Edward, Rotorua

W   V NEW ZEALAND POLICE HC ROT CRI-2010-463-000015  5 March 2010

[1]      The appellant faces a number of charges, one of intentional damage, one of theft, one of possession of methamphetamine, one of possession of a pipe, one of assault,  driving  whilst  disqualified  charge  on  29  October  2009  and  two  further driving while disqualified charges on 12 and 13 January 2010.  When she was before the Court on 16 December she pleaded guilty to the offences that were before the Court at that time and was remanded for sentence on 22 February 2010.   As a condition of bail she was directed to attend the Probation Service at 9.00 a.m. on 3

February 2010 for the preparation of a pre-sentence report.  She failed to attend.

[2]      When the appellant was before the Court on 22 February 2010 the Judge had a report from the probation officer noting that an appointment was made for 13

January for an interview that the appellant failed to attend or notify the probation officer of why she did not attend.  The report noted that a further letter was sent to her on 15 January 2010 providing another appointment time of 25 January 2010. She failed to attend that second appointment.  More relevantly, however, she failed to attend the Probation Service on 3 February as directed as a condition of her bail.

[3]      In the circumstances Judge McGuire remanded her in custody for a pre- sentence report and sentence on 23 March 2010.

[4]      The  appeal  is  advanced  on  the  basis  that  the  Judge  did  not  have  full information before him, namely the appellant had otherwise been complying with her conditions of bail, particularly reporting, that she was five and a half months pregnant and that, in counsel’s submission, it was unlikely she would be sentenced to imprisonment.

[5]      Section 13 of the Bail Act would have applied.  The Court is directed not to grant bail unless satisfied on the balance of probabilities it is in the interests of justice to do so.  The Court is directed to consider whether the defendant is likely to receive a sentence of imprisonment, the length of time to pass before sentence, the personal circumstances of the defendant and any other relevant considerations.  If a defendant is unlikely to receive a sentence of imprisonment this must count against them being remanded in custody.

[6]      In the present case perhaps the most serious offending is the appellant’s driving whilst disqualified, given that she has a previous conviction in 2007 for that and she has two previous convictions for driving with excess blood alcohol.

[7]      The matter is certainly exacerbated by the two further alleged offences on 12 and 13 January of driving whilst disqualified.

[8]      Given the extent of the appellant’s offending that was before the Judge when he considered the matter on 22 February 2009 I am not prepared to say that it is unlikely that a sentence of imprisonment would be imposed.   That is one of the sentencing options that the Court will have to consider on the day.  It may well be, as Mr Edward submits, the most appropriate sentence would be one of home or community detention but that must be for the sentencing Judge on the day.  I am not able at this stage and on the information available to me to say it is unlikely that a sentence of imprisonment would be imposed.

[9]      The length of time to sentence is not long.

[10]     The personal circumstances of the appellant are relevant.   It is a matter of concern that someone who is five and a half months pregnant is in a prison.  That is a factor against the remand in custody.   Weighing against that is the proper consideration noted by the Judge, namely that the appellant had failed to comply with the express condition of bail that she attend for the purposes of completing a pre-sentence report.   Her failure to comply with that direction led to her sentence being adjourned.   Because she is at risk of imprisonment and a sentence of imprisonment cannot be imposed without a pre-sentence report her failure to attend prevented the sentence hearing proceeding.  A person cannot be allowed to put their sentencing date off by failing to attend for pre-sentence reports.

[11]     In this case the obligation was expressly made known to the appellant by being incorporated as a bail condition.  Regrettably the appellant has shown through her behaviour and history that she does not comply with orders of the Court.  She has offended whilst on bail.  That is also a relevant factor.

[12]     In the circumstances it was open to the Judge, in the exercise of his discretion to remand the appellant in custody as he did.

[13]     The appeal is dismissed.

[14]     During the course of discussions with counsel the issue of the possibility of home detention was raised.  That may be a possible sentencing option.  If it has not been sought formally by the District Court I would ask the Registrar to ensure that a home detention report is obtained so that that is before the sentencing Judge.  That is of course without any indication of what the appropriate sentence might ultimately

be.

Venning J